Date
23 November 2017
Premier Li Keqiang votes at the NPC closing session. In his work report, Li mentioned for the first time that the central government must strictly comply with the Chinese constitution and the Basic Law regarding Hong Kong. Photo: Xinhua, HKEJ
Premier Li Keqiang votes at the NPC closing session. In his work report, Li mentioned for the first time that the central government must strictly comply with the Chinese constitution and the Basic Law regarding Hong Kong. Photo: Xinhua, HKEJ

How NPC exceeded its powers over 2017 election framework

In a chapter on Hong Kong in his government report during the recent National People’s Congress (NPC), Premier Li Keqiang for the first time said the central government must “strictly comply with the constitution and the Basic Law regarding Hong Kong’s affairs”.

Ever since the 1997 handover, it has been almost routine to see Chinese leaders refer to the Basic Law in their annual government report.

However, this was the first time the Chinese constitution was brought up. Does this imply Beijing is changing its policy toward Hong Kong?

For years, the relationship between the Chinese constitution and the Basic Law has been rather unclear, especially when it comes to which provisions of the constitution apply to Hong Kong and which don’t.

It might not be a bad thing if Beijing stuck to the constitution in dealing with Hong Kong’s affairs.

In the preamble, the Basic Law states that “the Hong Kong Special Administrative Region will be established in accordance with the provisions of Article 31 of the Constitution of the People’s Republic of China”.

It is under Article 31 that the NPC was charged with drawing up the Basic Law.

On the other hand, Article 11 of the Basic Law also stipulates that in accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies of Hong Kong must be based on the provisions of this law.

Before looking into Article 11 of the Basic Law, we should perhaps first refer to Article 31 of the Chinese constitution; after all, it is mentioned twice in the Basic Law.

Article 31 is rather simple. It stipulates that “the state may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the NPC in light of specific conditions”.

It is beyond doubt that Article 31 is applicable to Hong Kong because it forms the legal foundation of the entire Basic Law.

In other words, without Article 31 of the constitution, the Basic Law will not even exist.

Nevertheless, Article 31 alone is insufficient to answer which other provisions of the Chinese constitution apply to Hong Kong since it is a special arrangement.

So let’s refer back to the full text of Article 11 of the Basic Law which says “in accordance with Article 31 of the Constitution of the People’s Republic of China, the systems and policies practised in the Hong Kong Special Administrative Region, including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this law. No law enacted by the legislature of the Hong Kong Special Administrative Region shall contravene this law.”

Based on this, we can probably come to a reasonable conclusion that any constitutional provision that deals with the social and economic systems, systems that safeguard the basic rights and freedoms of Hong Kong citizens or systems that govern the administrative, legislative and judicial branches of Hong Kong does not apply to Hong Kong because these areas are already under the jurisdiction of the Basic Law.

As Premier Li asserted that the central government must strictly comply with the constitution regarding Hong Kong’s affairs, it is probably in our interest to thoroughly scrutinize the NPC standing committee’s 831 Resolution (which sets out the framework for the 2017 chief executive election) to see if it is strictly in line with the constitution.

In order to further define the jurisdiction of the NPCSC, the NPC passed the Legislation Law in 2000.

Under Article 42 of this law, the NPCSC is allowed to interpret laws only under two circumstances: if the meaning of a law requires further interpretation and if new circumstances have arisen and there are doubts whether the original laws remain applicable.

It appears that the 831 Resolution contravenes Article 42 of the Legislation Law because the framework laid down by the resolution over our political reform was not intended to further interpret Article 45 of the Basic Law, neither was it aimed at providing new legal justification for Article 45.

In fact, what the 831 Resolution did was simply add new meanings to Article 45.

Simply put, the 831 Resolution did not strictly comply with the Legislation Law and the NPCSC exceeded the jurisdiction allowed by the constitution.

As Premier Li has said, things must be done in strict accordance with the constitution. The SAR government should be extra careful in handling its political reform proposal.

This article appeared in the Hong Kong Economic Journal on March 20.

[Chinese version 中文版]

Translation by Alan Lee

– Contact us at [email protected]

RA

Associate Professor of Law at the University of Hong Kong

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